Tuesday, March 16, 2004

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

February 9, 2004, Decided

…Reinhart does present some evidence which might show that Shaner viewed him as limited in the major-life activity of thinking. Specifically, Shaner called Reinhart "dumbo," "stupid motherfucker," "retard," "retarded," and "dumb bastard," and "slow in the head"; he also reportedly told another employee that Reinhart had "fits, but I'm not supposed to tell anybody about it."

It is possible for disparaging comments about an employee to raise a triable issue of fact as to whether the employee was regarded as disabled. For instance, in a recent Eighth Circuit Court of Appeals case, a plaintiff had epilepsy, and as a result had undergone surgery to remove part of his brain and to insert metal plates into his head. After the plaintiff's supervisor found out about his epilepsy and the surgery., the supervisor told the plaintiff's coworkers, and the coworkers and supervisor began calling him "platehead." Shaver v. Independent Stave Co., 350 F.3d 716, 722 (8th Cir. 2003). At least some of the plaintiff's coworkers also called him "stupid" in conjunction with calling him "platehead," Shaver v. Indep. Stave Co., 2003 U.S. Dist. LEXIS 5331, 2003 WL 1203575, *1 (E.D. Mo. 2003), and [*14] regarded him as "not playing with a full deck." 350 F.3d at 720-21. The Eighth Circuit held that this evidence was sufficient to allow a jury to find that the plaintiff was disabled because he was regarded as limited in the major-life activity of thinking. Shaver, 350 F.3d at 720-21…